THE TIME IS NOW

Before I start this article and before people begin to rake me over the coals for flawed legal analysis, let me caveat this article by saying that I am NOT a lawyer (but I did stay at a Holiday Inn Express last night).  I am writing this article on some of my own observations and, ­­dare I say it, common sense and logic.  I have read the decision by Judge Bolton as it relates to the Arizona law SB1070.  It seems to me that the entire judgment was a travesty to a society founded on law.  The federal government’s argument is ridiculous and the judge’s ruling even more so.  Part of the judge’s ruling states the following:  “Thus, an increase in the number of requests for determinations of immigration status, such as is likely to result from the mandatory requirement that Arizona law enforcement officials and agencies check the immigration status of any person who is arrested, will divert resources from the federal government’s other responsibilities and priorities. “

What could be more of a priority than to ensure the safety of the citizenry and security of the borders?  Isn’t this the primary function of government and more specifically the Department of Homeland Security, to include the Border Patrol, Immigration and Customs Enforcement (ICE)?

But beyond that, it seems to me that if we are to extend the same logic that the judge used in this ruling to all laws that are overseen by the federal government as the basis for a preemption argument we, as a nation, are in big, big trouble.  Here is just one example:  Arizona state law classifies as illegal, under Title 13 – Criminal Code 13-3552, the commercial sexual exploitation of a minor (excerpt follows).

13-3552. Commercial sexual exploitation of a minor; classification

A. A person commits commercial sexual exploitation of a minor by knowingly:

1. Using, employing, persuading, enticing, inducing or coercing a minor to engage in or assist others to engage in exploitive exhibition or other sexual conduct for the purpose of producing any visual depiction or live act depicting such conduct.

2. Using, employing, persuading, enticing, inducing or coercing a minor to expose the genitals or anus or the areola or nipple of the female breast for financial or commercial gain.

3. Permitting a minor under the person’s custody or control to engage in or assist others to engage in exploitive exhibition or other sexual conduct for the purpose of producing any visual depiction or live act depicting such conduct.

4. Transporting or financing the transportation of any minor through or across this state with the intent that the minor engage in prostitution, exploitive exhibition or other sexual conduct for the purpose of producing a visual depiction or live act depicting such conduct.

B. Commercial sexual exploitation of a minor is a class 2 felony and if the minor is under fifteen years of age it is punishable pursuant to section 13-705.

AND here is the federal Law:

TITLE 18 > PART I > CHAPTER 110 > § 2251

§ 2251. Sexual exploitation of children

(a) Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, or who transports any minor in or affecting interstate or foreign commerce, or in any Territory or Possession of the United States, with the intent that such minor engage in, any sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct, shall be punished as provided under subsection (e), if such person knows or has reason to know that such visual depiction will be transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed, if that visual depiction was produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means, including by computer, or if such visual depiction has actually been transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed.

They are quite similar.  As a matter of fact, the federal law is, essentially, restated in the state statute.  Much the same way federal immigration law is restated in AZ SB 1070.   Are we to understand that state and local municipalities are prohibited from enforcing child pornography laws because this would pre-empt the federal government as it would divert resources from the Department of Justice’s other responsibilities and priorities?  I would hope NOT.  I think it is safe to say that most sane people would say that IF there were a sudden rise in child pornography and local jurisdictions began to refer cases to the DOJ for adjudication that they would expect the DOJ to take those cases.  Using Judge Bolton’s ruling as a guide it would be possible for the DOJ to claim preemption because they have other responsibilities and priorities and a sudden increase in Child Pornography cases would divert resources.  Does that make sense to anyone?

A by-product of the ruling is the idea that a State may not enact a law to support and supplement federal law. This can and may have far reaching ramifications and unintended consequences in the future.  This has the possibility of affecting prosecutions and verdicts in many jurisdictions.

But there are more basic questions.  For example:  What does it mean when the federal government takes a position against the enforcement of a law that would have the effect of assisting that same federal government in fulfilling its obligation under the United States Constitution in favor of millions of law breakers?   How does the federal government justify a position of accepting the status quo rather than accept the help of state, county and municipal jurisdictions indentifying, detaining and arresting people who have violated our countries immigration laws? What has happened to the rule of law?

There is no argument that the federal government has failed and continues to fail in its duty to protect and defend the general welfare of the citizens of this country.  No one is denying this fact.  What is unbelievable is that the government, while acknowledging its failure to properly enforce the law, continues to erect obstacles to ensure the status quo.  The solution to the border problem is not solved by closing park lands and erecting signs south of Phoenix warning citizens that there are drug smugglers in the area, but by immediately increasing forces along the border to keep the smugglers out.  The government’s response to Arizona SB1070 is inconceivable, but somehow, not surprising.

How many hospitals must be shut down?  How many billions of dollars must we spend on social services, medical care, and schools?  How many citizens and legal residents must be assaulted, robbed, raped, and killed before we finally demand that the federal government do its job?  We have to ask ourselves, how long are we going to accept the federal government’s dereliction of duty?  How long are we going to wait for the petty politics in Washington to catch up to the real world realities along our southern border?  There comes a time when states must take a stand for what is right and what is just.  There is a time when states must act in the interests of their citizens’ safety and security.

For Arizona, that time is now.

Systematic Immigration Reform (STEP III)

YES S.I.R.

SYTEMATIC IMMIGRATION REFORM (STEP III)

This is the Third and final part in a series outlining a strategy to address illegal immigration.  Please see Step One here and Step II, here.

Now that we have covered both stopping the flow of illegal immigrants and the regularization of those that are here; we can begin to discuss the accommodations for those caught up in the middle, through no fault of their own.  I am specifically talking about illegal immigrants that were children brought illegally to the United States by their parents.  You must separate the individuals into a two categories.

1. Those that are still minors at the time the legislation is passed.
2. Those that have resided in the United States since childhood but are now adults.

Documentation must be presented to determine into which category the individual will be placed.  This can be easily done with report cards from elementary, middle and high school.  If the individual cannot prove that he/she was brought to the United States as a minor he/she will be subject to the previously outlined conditions of the CERIC (Conditional Employment and Residency Identification and Card). 

Regardless of Category everyone will be processed per the CERIC requirements to include fingerprints, DNA, and photo identification.  They must meet the conditions for the CERIC, i.e. they have no warrants, no felony convictions and other condition previously stipulated.   If they fail to meet the requirements they will be processed for deportation.

Category 1- Minor Children would be issued a CERIC.  If these individuals graduate high school and have no previous criminal record they will be eligible and may apply for permanent residency at age 21.  If they fail to graduate from high school they will continue under the CERIC until age 23 after which time they may apply for permanent residency.  

Category 2-  If the individuals in this category can show proof of graduation from US education through high school, they will have a two-year CERIC requirement and then will be eligible to apply for permanent residency status through existing procedures.  Those individuals in this category who did not graduate high school will have a five-year CERIC requirement and would subsequently be eligible to apply for permanent residency.

Other special conditions that should be implemented include the following:

Any person that is eligible for a CERIC and can meet the requirements for military service may enter into the United States Armed Services.  Upon honorable completion of a 4-year active duty commitment, those individuals will immediately be eligible to apply for US citizenship.

The last and final step to Immigration reform is to make the hiring of illegal immigrants prohibitively expensive in future years.  This would easily be accomplished by implementing one clear, precise and ironclad law for all businesses: If you knowingly or negligently hire an illegal alien, after the implementation of this program, you shall be fined $500,000 per incident.  This will make it prohibitively expensive to break the law.  No business in their right mind will risk the fine to save $2.00 an hour in labor costs.  This will protect the workers from exploitation and prevent future waves of illegal aliens from crossing the border looking for work.  If they know that there is a close to zero chance of finding a job because no business will hire them, they will cease to look north as a viable option.  Businesses will also benefit; businesses will be on an even playing field and competiveness will increase across many industries in the economy.  Because all the new CERIC card holders will be legal, businesses can no longer undercut the competition by using illegal laborers.  The net result will be a more reliable work force and safer working conditions for all workers.  This will all happen in the marketplace, on its own.  This can only be looked upon as a net positive.  

In order to facilitate the verification of workers, an E-Verify type system would be set up with the information from the CERIC.  Upon entry of the CERIC number the system would show the employer a photo of the owner of that number/card along with a physical description.  The employer could then be assured that the individual was in fact legally eligible to work in the United States. And, absolve him of legal repercussions should fraud be subsequently discovered.  This process must be simple and quick along with being inexpensive.  There are no technological reasons this cannot be done.  The only obstacles to establishing these policies for the employer are and will undoubtedly be political.

The underlying theme to SYSTEMATIC IMMIGRATION REFORM and the CERIC is that it is CONDITIONAL!  The conditions are straightforward, fair and achievable.  This is not and should not be misconstrued to be a “trap” to catch and deport anyone.  It is merely a method by which illegal immigrants can prove what they never tire of telling people: “I am law-abiding and I just came here to work.”  They must abide by the law, period.  If they break the law, by committing a felony crime, commit a third misdemeanor crime, or a 2^nd DUI, they will be processed for deportation.  It is not unreasonable to ask that these immigrants follow our laws as a condition for legal status in the United States; and I believe many of them would be happy to accept these terms and end the constant anxiety of being caught and deported. 

I believe that this country is the greatest nation ever devised and established by man.  I wholeheartedly understand the manic rush of people to come to this great country.  They are looking for, what we as Americans sometimes take for granted; the freedom to pursue life, liberty and happiness.  But, while I may empathize with their motivations, I cannot condone their lack of respect for the rule of law.  I firmly believe that a great majority of Americans would be supportive of legislation that would adopt the concepts outlined in this series and would embrace a new wave of LEGAL immigrants, while at the same time forgive and give those who would necessarily be required to register themselves under this program an opportunity to prove that they are, in fact, law abiding and worthy of the chance to become US citizens.  The People of the United States have always been and continue to be the most open, understanding, and charitable people in the world; they only ask that the laws, borders and sovereignty of the United States be respected. 

This road map is not a complete solution; obviously, many details would have to be worked out.  But if the general concepts were adopted and the conditions unambiguously established, it would make political, practical and common sense.  Whatever its final version, the key to its success is simplicity; adding another 1000 pages of regulation and bureaucratic red tape to the already dizzyingly complicated immigration statutes would serve no purpose and would only exacerbate the problems we face today. 

Finally, I must reiterate that the first and most critical step in this Systematic approach is to SECURE THE BORDER.  Much like the recent oil spill in the Gulf of Mexico, you can send hundreds of skimmers and emplace hundreds of miles of barriers and booms and build all the sand levies you like, but at the end of the day they still had to stop the leak.  Stopping the leak is just the first step.  True recovery would have been impossible until the leak was stopped, and there is still a long recovery process forthcoming.  In the same way, all the laws and regulations for both immigration and enforcement at all levels of government that are enacted won’t solve the problem if you are unwilling to stop the leak.

I challenge any and all politicians to use this roadmap of ideas as a true guide to once and for all solve the illegal immigration problem in the United States.  But it will take intestinal fortitude and daring.  Those that are weak of heart need not apply.  The only way this problem is going to be solved it to tackle it directly and to ignore the petty political bickering and backbiting.  This will take determination and a concerted effort, but it can be cone and it should be done; not only because it will solve or many of the issues associated with illegal immigration, but because it is the right thing to do.

Systematic Immigration Reform (Step II)

YES S.I.R.

SYTEMATIC IMMIGRATION REFORM (STEP II)

This is the second part in a continuing series outlining a strategy to address illegal immigration.  Please see Step One here. 

After step one is complete.  It is now possible to begin the arduous task of sorting out those individuals that are in the country illegally.  But, before we go any further there must be one absolutely understood aspect of my proposal; NO AMNESTY!! And, citizenship opportunities will be the exception not the rule, but those instances will be discussed later in the series.

The second step must be an effort to register as many illegal aliens in the country as is possible.  This would be accomplished by establishing registration sites where illegal aliens could register. 

One of the most common things illegal immigrants express is– the only law they have violated is crossing the border illegally.  Well, this program will give all illegal aliens the opportunity to demonstrate their respect for the laws of this country and to prove that they are willing to abide by those laws in exchange for the opportunity to work and make a living to provide for their family.

The federal government should establish an open window of time; say 12 months, for all illegal aliens to register.  This includes adults and children (illegal immigrant children will be addressed in future steps).  The individual will have to pay a fine and an application fee (the schedule for this can be determined at a later date, the important issue is that they must be registered for the purposes of identification). At the end of the registration process the individual will be presented with a Conditional Employment and Residency Identification Card (CERIC) which will include a tax identification number.  Additionally, a CD/DVD with quick essential English lessons should be distributed, this will encourage assimilation. There may be arguments for requiring that individuals take a simple test for English at some point after issuance of the CERIC, this would only cover the most basic “survival” words and phrases. This is a debate which must be had and resolved.

Any person who fails to register within the appointed time and cannot present the CERIC after the window has closed will be summarily designated for deportation.  Most of those unwilling to register are likely the same people unwilling to abide by the law and should be dealt with accordingly.   At this point illegal aliens will be unable to use the worn out, overused meme that they “are law abiding except for crossing the border,” as an excuse/explanation for their illegal status.  They must either abide by the law as a condition for residency and employment or face deportation.  

The Card will allow the individual to work in the United States for three years; at which time the individual must reapply and must be re-screened before renewal of the CERIC is granted.  This re-screening will allow the Federal Government to determine if the individual is abiding by the conditions for the residency permit; if not the individual shall be processed for deportation.  If ANY individual fails to reapply for the CERIC after the initial three years, they have, ipso facto, violated the conditions of the CERIC and shall be detained and processed for deportation.  All holders of the CERIC will be afforded habeas corpus, but upon a felony conviction or a third misdemeanor crime (not to include traffic violations except DUI) the individual should be complete his/her sentence and be subsequently deported. 

The Tax ID number will be used to track and collect individual annual federal and state income tax.  There shall be NO opportunity for the individual to apply for collect or otherwise receive any social security benefits from the United States government or state governments to include food stamps, Medicare, Medicaid, Welfare, or housing assistance. In other words, the only benefit they will receive through the temporary worker program is the opportunity to find employment, period. The card will also allow the immigrant to get a bank account, driver’s license, insurance and other civil actions.  There will certainly be those that argue that this is unjust, but illegal immigrants themselves consistently say that all they want is the opportunity to work and make a living.    

The registration process will allow for identification of the person, to include fingerprints, DNA sample and photo identification.  The card should be equipped with either a magnetic strip, bar code, or micro-chip with all identification information embedded for use by law enforcement.   Additionally, the individual will be screened for any outstanding warrants and civil subpoenas, as well as a criminal record check.  Any one found with a felony conviction or more than three misdemeanor convictions shall be denied a work permit and be processed for deportation.  Anyone with an outstanding arrest warrant shall be arrested and extradited to the corresponding jurisdiction for prosecution and subsequent deportation. 

All individuals, who desire to become a resident, and subsequently a citizen, must repatriate to their home country and apply for a visa and/or residency through already established processes.

And finally, I would immediately increase the quota for visas from Central and South America and Europe as well, and allow 200-300% more immigrants a year to enter the US.  If Mexico and South American and European countries are going to willingly allow their citizens to seek out economic exile, which has the resulting effect of draining those countries of their best talent in all areas, then we should expedite and facilitate the assimilation and absorption of all these people as soon as practicable.  It is in the interests of the United States to bring in as many engineers, doctors, dentists, IT professionals, nurses, scientists and businessmen as soon as possible into the country which will fuel small business and the overall economy. 

The problem is not with immigrants coming into this country and finding a new way of life by complying with immigration laws.  Americans welcome legal immigrants with open arms. I for one would like the process to be easier and quicker. Additionally, I would like the process expanded to more people, and afford them a shot at the American Dream, as it was afforded to my parents and to me; through a process of assimilation into the culture.  What I don’t want is entire segment of the population who has shown blatant disregard for the law to be rewarded.  A population of illegal aliens who will take advantage of the opportunity, liberty, and freedom this country provides while at the same time denigrating the country that provides it.  What I don’t want is a segment of society made up of illegal aliens who will tell you of the lawlessness and disrespect for the rule of law in their country of origin as they shamelessly ignore the laws and create evermore lawlessness in this country. 

This concludes step two.  The next step will begin to address the “exceptions” and a “path to citizenship” for certain subsets of individuals.  After all the United States as a country has traditionally been and continues to be the most compassionate and welcoming country in the world.

SYSTEMATIC IMMIGRATION REFORM (SIR)

SYSTEMATIC IMMIGRATION REFORM (SIR)
(STEP ONE)
 
This is an open letter to Conservatives. Please stop engaging in debates on the subject of comprehensive immigration reform. Conservatives and anyone with common sense should oppose, not only comprehensive immigration reform, but ANY legislation where comprehensive is part of the title.  This includes comprehensive banking reform, comprehensive health reform (too late for that one), comprehensive election reform, and comprehensive energy policy. 
 
I use the example of having an old 68 mustang in your garage.  You can not and will never be able to comprehensively fix that car.  It is impossible. Even if you had a garage full of ASE certified mechanics and restorers, and you told them all to begin it would be impossible.  Why? Because even then they would all get in each others way.  One group would want to jack the car up.  Someone would be taking out the dash, while still others would be trying to take out the interior.  It would be chaos.  Yet that is what the government did with healthcare, and now wants to do with the banking industry and immigration policy.
 
The real answer is systematic reform.  In our example, the most logical thing to do is to check the frame and ensure that it can sustain and accommodate all the rest of the subsequent repairs and/or modifications. A rebuilt engine that runs great means nothing if installed on a bent or rusting frame. It is not until after the first step that you can move on to the engine and rebuild it, install fresh gaskets, and rings and anything necessary to get running well.  Once that is done you pull the transmission, etc… Usually, you go through the restoration systematically to ensure each change progresses toward the ultimate goal.  Occasionally, it is to be expected that some part doesn’t quite fit or needs to be rebuilt in order for the previous repair or change to work properly within the context of the restoration. 
 
All these concepts apply to immigration reform.  The reformation/restoration of immigration policy must be done systematically.  The first step is to find the area in dire need of fixing and attack that isolated problem.  It will do no good to try and fix everything at once.  In the case of immigration reform, the number one most pressing problem is the actual border.  That is what must be fixed before any other problem can be addressed, much like the frame in our example, it does absolutely no good to write policy without first addressing the issue that makes the policy necessary in the first place.
 
We must build a wall!  Not a virtual wall, a real 20-40 foot wall that will serve as real deterrent to illegal aliens attempting to enter into the country illegally.  I would even go as far as suggesting a double wall where the first wall and second wall create a “dry moat” along the border so that those that cross over the border are trapped between the two walls which would give border patrol agents time to intercept and detain illegal border crossers.  This wall, contrary to popular belief, would not stop ALL illegal border crossers, but it would deter a great majority of them.  Obviously without a wall we will never know exactly how much the deterrent effect might be, but I would speculate that it could cut illegal border crossers by 65-75 percent.  Many will argue that the fence will do no good.   But in a Congressional Research Service report to Congress it was reported that  “After the IIRIRA’s mandate for increased enforcement along the Southwest border
in 1996, including construction of the triple-fence, apprehensions dropped rapidly in the
San Diego sector in the late 1990s — from 480,000 in FY1996 to 100,000 in FY2002.
The reduction in apprehensions was even more marked in the areas where fencing was
constructed within San Diego sector. The USBP’s Imperial Beach and Chula Vista
stations saw their apprehensions decline from 321,560 in FY1993 to 19,035 in FY2004
— a reduction of 94% over the 12 year period.”  Whenever someone makes this argument they should be immediately asked why they have doors and locks on their houses and fences around their property.  Physical barriers work and are very effective, period.
 
In order to get this done, Congress must allow for the construction of the wall in National Parks and refuges along the border.  For those that argue that this would destroy habitat and the natural beauty of the environment must only be shown pictures of the devastation of garbage left by illegal border crossers to understand what really causes the destruction of the natural beauty of the desert.  Congress should allow for the construction of the fence, all other laws notwithstanding. Once Congress makes the necessary exceptions to allow the construction, it should immediately introduce legislation to appropriate funds for construction of the wall.  This would have some very positive effects for the nation and the economy.  First, companies would have to bid and hire workers to supply the materiel, rent or buy the equipment, and install the fence. Second, the mere action of building the wall and will project a perception that the United States is shifting from tacit approval of illegal immigration to a concerted effort to enforce immigration law; this will itself create an environment whereby illegal immigrants will sense a turning of the tides and many will ultimately make a decision to self deport.  Third, this will allow the border patrol to use its resources more efficiently and concentrate on the remaining illegal border crossers which are more likely to be gun traffickers, drug runners, and human smugglers.  
 
Along with the building of the border fence Congress should simultaneously increase the budget for the Coast Guard for additional personnel and equipment to include a drastic increase of boats.  What is the reason for that?  Because as soon as you complete the border fence, the easiest way for illegal aliens to cross into the United States will be by boat; off the coast of San Diego and in the Gulf of Mexico in Texas. 
 
Once the American public is assured that the borders are secure with a genuine physical deterrent, they will be more receptive to the idea of regularizing the status of those that are left in the country; but not until then!  The American public has learned its lesson and will no longer accept empty promises that the border fence will be addressed and that funding will be appropriated at a future date the way they did in 1986.  Americans are tired of waiting on Congress to comply with and appropriate the funds for legislation which has been signed into law such as the Secure Fence Act of 2006.  Through their actions, first by the State of Arizona as stated in the new AZ1070 law, and then through their will, as reflected in poll after poll, the American people want Systematic Immigration Reform, and they will accept nothing less. 
 
So please… Stop allowing progressives and liberals set the conditions for the argument.  The only way to fix a problem, any problem, is to do so thoughtfully, deliberately, and systematically. Building the border fences is STEP I.  Nothing can proceed without accomplishing that first critical step.  A thousand mile journey begins with a single step… Let’s get started.